Summary
holding unless a right to possession of an office or position is established by mandamus, "other adjudication or stipulation, recovery of back pay is barred."
Summary of this case from Finley v. GiacobbeOpinion
November 8, 1982
Appeal from the State Division of Human Rights.
Ann Thacher Anderson ( Harry Starr of counsel), for petitioner in Proceeding No. 1.
Ramon J. Rodriguez ( Michael Kernan of counsel), for New York State Department of Correctional Services, respondent in Proceeding No. 1.
Calvin M. Berger ( John K. Dalton of counsel), for New York State Department of Audit and Control, respondent in Proceeding No. 1.
Ann Thacher Anderson ( Elaine Berger of counsel), for petitioner in Proceeding No. 2.
Calvin M. Berger ( John K. Dalton of counsel), for N.Y.S. Dept. of Audit and Control and Harvey Randall for N.Y.S. Dept. of Civil Service in Proceeding No. 2.
The core issue pressed upon this court by all the parties for decision is whether a money award against the State of New York can constitutionally be made by the Commissioner of Human Rights and enforced by the Appellate Division of the Supreme Court rather than by the Court of Claims. We answer in the affirmative.
The commissioner declined to oppose the Comptroller's application to intervene in the Greebel matter; instead, the commissioner urges this court to resolve on the merits in both matters the "basic question of the legislative mandate that the Division investigate, hear and seek to remedy proven claims of unlawful discriminatory practices even when filed against the State agencies and employers". It was noted by the Comptroller that the Commissioner had been unable to obtain clarification of that mandate from the State Legislature in 1977 and 1978. Obviously the commissioner, disappointed in the legislative process, hopes for better luck in the courts.
In the first matter the State Department of Correctional Services was found by the commissioner to have unlawfully discriminated against Santo Geraci in dismissing him from his position as a correction officer because his age exceeded the maximum fixed by the department. The commissioner's order directed the department to pay a sum of money purportedly representing lost wages with interest, less standard payroll deductions, in addition to the sum of $250 for mental anguish. The Human Rights Appeal Board dismissed as untimely the department's appeal of the order and after numerous demands for payment, a voucher for the back pay amount only was prepared and then certified by the Department of Civil Service, which agreed that complainant had been illegally ousted from his office. After a check in the amount of $1,839.81 for back pay was sent to complainant, the Attorney-General ruled in an opinion requested by the State Comptroller that under the Human Rights Law the commissioner was vested with sufficient general jurisdiction over the State to award "such compensatory damages as are appropriate to compensate for the wrong suffered" (Executive Law, § 297) and to seek enforcement of such award in the Appellate Division (Executive Law, § 298) without relegation to suit in the Court of Claims. This opinion, dated February 28, 1980, reasoned that the State had impliedly waived sovereign immunity from suit in the same way it had expressly waived such immunity in section 77 Civ. Serv. of the Civil Service Law, which authorizes officers or employees removed in violation of that chapter to recover lost earnings.
The State Department of Correctional Services answered the instant application for enforcement by arguing that it was untimely brought under section 298 Exec. of the Executive Law and that, on the merits, the award was fatally defective in being predicated upon a record lacking substantial evidence and an erroneous ruling of substantive law. While conceding that there is "no question" that the State is "subject to" the Human Rights Law, the State Comptroller argued that the commissioner's jurisdiction did not extend to entertaining money claims against the State under section 297 Exec. of the Executive Law because the Constitution (art VI, § 9) vests "exclusive" jurisdiction over such claims in the Court of Claims. Further, he argued that enforcement was unavailable in this court because he had not been joined as a party to the original proceeding. Also, there was neither a legal basis authorizing, nor a legislative appropriation covering, interest or damages for mental anguish.
The second matter is before this court in a different posture. The commissioner obtained on complainant Mitchell Greebel's behalf an order on default from this court dated December 1, 1980 to enforce an unappealed award against the State Parks and Recreation Commission covering back pay (less deductions) in the amount of $1,396.80, with interest, plus $500 for mental anguish. The State Comptroller seeks leave to intervene and set aside this order because the commissioner has threatened to initiate contempt proceedings for noncompliance. The Comptroller raises the identical constitutional arguments set out in the Geraci matter. Additionally, he points out that in Greebel's case the award for lost earnings was predicated on an assumption that but for the State's wrongful act of discrimination in refusing to hire Greebel, a Sabbath observer, he would have been appointed to the civil service position; however, argues the Comptroller, the commissioner's acting on this assumption in fixing the amount of damages unlawfully trenched upon the constitutional mandate of the Department of Civil Service, which must pass upon all such appointments, including noncompetitive summer positions such as the one sought by complainant. The latter department seeks leave to intervene with respect to that portion of the award characterized as lost earnings, and points out that the Comptroller could not lawfully authorize payment from personal service appropriations absent its certification of the payroll. As already noted, the commissioner has consented to the Comptroller's intervention though "seriously" questioning the need for intervention by the Civil Service Department.
Taking each matter in turn, we conclude initially that the commissioner's application for enforcement on behalf of complainant Geraci was timely. The last sentence of section 298 Exec. of the Executive Law requires that a "proceeding under this section when instituted by any complainant, respondent or other person aggrieved" be commenced within 30 days of service of the commissioner's order. But under the language of this rather lengthy and convoluted section it is clear that this proceeding is one for judicial review and not judicial enforcement because the first sentence of the section authorizes only the commissioner to bring an enforcement proceeding.
Insofar as the issue of substantial evidence is belatedly raised by the Department of Correctional Services, which failed to take an administrative appeal or to seek judicial review, we note preliminarily that under Matter of State Div. of Human Rights v. Bystricky ( 30 N.Y.2d 322) the issue is not waived and must be resolved by this court on an enforcement application using the same degree of scrutiny that would have been exercised on an application for judicial review. (See State Div. of Human Rights v. Sears, Roebuck Co., 71 A.D.2d 885; but see Matter of State Div. of Human Rights v. Merante, 35 A.D.2d 652 ; Ernsteins v State Div. of Human Rights, 35 A.D.2d 599, app dsmd 28 N.Y.2d 802; Matter of State Div. of Human Rights v. Union Carbide Corp., 34 A.D.2d 636.) The answer to the administrative complaint filed by Geraci admitted the facts pertinent to the reason for his dismissal, and merely pleaded in bar of recovery legal justification for fixing a maximum age of 37 as approved by the State Civil Service Commission. The commissioner, however, concluded that the age limit was not "reasonable" under section 54 Civ. Serv. of the Civil Service Law. Upon remission by the Human Rights Appeal Board for a redetermination of damages, the commissioner took evidence with respect to mental anguish. The complainant testified that his age at the time of his dismissal (45) had been known to his superiors, that he had resigned from a private sector position to rejoin the civil service at their urging after having been laid off from his original civil service position, and that he was the sole support of his wife and six children. We find that this testimony constituted substantial evidence supporting the award of compensation for mental anguish under the test set forth in Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights ( 35 N.Y.2d 143, 147) and Italiano v New York State Executive Dept., Div. of Human Rights ( 36 A.D.2d 1009).
Presumably, however, the issue of whether the commissioner's order was "in conformity with * * * the laws of the state" (Executive Law, § 297-a, subd 7, par a) is as much before this court in this enforcement proceeding as is the issue of substantial evidence (Executive Law, § 297-a, subd 7, par d), and it is this issue that we resolve against the commissioner.
The Department of Correctional Services properly points out that while this matter was pending before the State Division of Human Rights and the Human Rights Appeal Board, the Court of Appeals ruled that there was no violation of section 54 Civ. Serv. of the Civil Service Law in imposing a maximum age limit of 32 for New York City correction officers ( Matter of Figueroa v. Bronstein, 38 N.Y.2d 533, app dsmd 429 U.S. 806; see Knapp v. Monroe County Civ. Serv. Comm., 77 A.D.2d 817 [age 29 limit for police officers not violative of Human Rights Law]). Since it is not disputed that complainant's age in this matter exceeded the department's age limit, and the Court of Appeals had ruled a nearly identical age limit valid, there was no lawful predicate for the commissioner's order. Indeed, the commissioner completely fails to address this point in his application or reply papers though clearly raised by the Department of Correctional Services.
A reviewing court, however, is required to apply the law as it exists at the time of its decision, absent a vesting of rights not present here (see Kelly v. Long Is. Light. Co., 31 N.Y.2d 25, 29, n 3; Hain v. Hewlett Arcade, 40 A.D.2d 991), and the fact that the Comptroller has paid a portion of the sum directed to be paid by the commissioner's order (lost earnings) would not constitute a waiver of the error insofar as the remainder of the order now before this court is sought to be enforced (see Hayes v. Nourse, 107 N.Y. 577).
Accordingly, the commissioner's application to enforce the award to complainant Geraci must be denied.
In the second matter we find the issues raised by the Comptroller and the Department of Civil Service to be sufficiently important to warrant permission for their intervention with respect to the validity of the award and the propriety of enforcement.
Insofar as the issue of lost earnings is concerned, we disagree with the intervenors that the commissioner's order violated the rule laid down in City of Schenectady v. State Div. of Human Rights ( 37 N.Y.2d 421, 430) to the effect that the State Division of Human Rights, lacking the Civil Service Department's authority to direct appointments to the civil service, could not award back pay "dependent upon the offer of appointment". The commissioner persuasively argues that there was no reasonable probability that complainant would not have been certified for the summer position under section 100 Civ. Serv. of the Civil Service Law because hiring had been on a first-come, first-serve basis. Indeed, the Civil Service Department does not even suggest at this late date that there were any grounds for disqualifying complainant. Under these circumstances, we see no reason for remission to the commissioner for a new finding of damages (see Sears v. New York State Div. of Human Rights, 73 A.D.2d 913) and we conclude that the award purportedly representing back pay less ordinary payroll deductions was legally an award for a violation of his civil rights, requiring no discount from the amount of lost wages to reflect the contingency of nonappointment (see State Div. of Human Rights v. Human Rights Comm. of Syracuse Onondaga County, 79 A.D.2d 181, 184-185).
The Human Rights Law expressly authorizes two kinds of monetary relief: "back pay" as incident to appointment, reinstatement or upgrading (Executive Law, § 297, subd 4, par c, cl [ii]) and "compensatory damages" (Executive Law, § 297, subd 4, par c, cl [iii]). (See Sears v. New York State Div. of Human Rights, 73 A.D.2d 913.) "Compensatory damages" would remedy personal injuries as well as breaches of employment contracts; however, it is worth noting that the distinction here is highlighted by the fact that in the Geraci matter an officer was allegedly ousted illegally from his position and mandamus might lie to reinstate him with back pay without regard to contract theory, on the other hand, in the Greebel matter, contract analysis would suggest that the complainant, as an untenured laborer, had an action to recover damages from the Parks and Recreation Commission for the repudiation of his tender of services upon accepting its first-come, first-serve offer of a summer job (cf. Burke v. Holtzmann, 117 App. Div. 292, affd 196 N.Y. 576).
Insofar as the issue of mental anguish compensation is before us, we call the intervenors' attention to the fact that it is now well settled that an "award * * * of compensatory damages to the person aggrieved by [a discriminatory] practice" (Executive Law, § 297, subd 4, par c, cl [iii]) may include such compensation (see Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 N.Y.2d 143, supra; State Comm. for Human Rights v. Speer, 29 N.Y.2d 555, revg 35 A.D.2d 107, 113 on dissent of HOPKINS, J.; Italiano v. New York State Executive Dept., Div. of Human Rights, 36 A.D.2d 1009, supra; Matter of Chance v. Frank's Beauty Salon, 35 A.D.2d 304). There is also authority for including in such statutory compensation an award of interest calculated under CPLR 5001 (subd [b]) (limited by section 3-a Gen. Mun. of the General Municipal Law) for "back pay" awards to aggrieved civil servants ( City of New York v. Cole, 63 A.D.2d 558, 559). Also, interest is commonly considered part of the aggrieved party's damages in civil suits (see, generally, 13 N.Y. Jur, Damages, § 130).
In both matters interest was preaward and calculated from an intermediate date (see CPLR 5001, subd [b]). This was consistent, apparently, with the parties' practice of viewing employment-related discrimination claims as either breach of contract or injury to property (employment position) claims under CPLR 5001 (subd [a]). The Comptroller raised the argument that, as stated in Matter of Gordon v. Board of Educ. ( 52 Misc.2d 175), such interest cannot be awarded because a back-pay award incidental to reinstatement upon mandamus is neither discharge of a contractual debt nor property damages (see, also, Morgan v Onassis, 5 N.Y.2d 732). This interpretation is too narrow. The petitioner in Gordon sought reinstatement with back pay; hence, the property (possession) interfered with here was not salary but petitioner's position, title to which was in petitioner. This analysis could be used to justify the commissioner's award in the Geraci matter of CPLR 5001 (subd [b]) interest predicated on CPLR 5001 (subd [a]) damages because the result of the alleged age discrimination was interference with his possession of his civil service position or office. But the analysis is irrelevant to the Greebel matter because complainant there was never appointed to a position. Therefore in that matter it is assumed that discrimination resulted in a breach of contract insofar as the record indicates that but for Greebel's Sabbath observance his acceptance of the State's job offer would not have been rejected. Insofar as this court concludes, however, that the complainants' causes of action are characterizable as civil rights torts for purposes of drawing upon current State budget appropriations (cf. Board of Educ. v. New York State Div. of Human Rights, 42 A.D.2d 49, 54), it must be noted that under CPLR 5001 (subd [a]) no preverdict or decision interest is available in personal injury actions. The Legislature's concern in continuing in the CPLR the prohibition against interest in such actions was the speculative nature of compensation for future loss and damages (see Legis Studies and Reports, McKinney's Cons Laws of NY, Book 7B, CPLR 5001, pp 526-527; 5 Weinstein-Korn-Miller, N Y Civ Prac, par 5001.07). Generally the trend has been to shoehorn a cause of action into whatever category would assimilate interest (e.g., Maule v. Kaufman, 33 N.Y.2d 58 [alimony arrears]; De Long Corp. v Morrison-Knudsen Co., 14 N.Y.2d 346 [inducing contract breach and unfair competition as property interference]; Flamm v. Noble, 296 N.Y. 262 [money loss due to duress]; Dalrymple v. Shults Chevrolet, 51 A.D.2d 884, affd 41 N.Y.2d 957 [negligence in failing to take out insurance on auto later wrecked]; Sinclair v Wieder, 48 A.D.2d 866 [matrimonial action]; Spadanuta v Incorporated Vil. of Rockville Centre, 20 A.D.2d 799, affd 15 N.Y.2d 755 [General Municipal Law taxpayer's action]), so long as the Legislature's principal concern about speculative future losses was respected (e.g., Gillespie v. Great Atlantic Pacific Tea Co., 26 A.D.2d 953, affd 21 N.Y.2d 823). CPLR 5001 (subd [a]) also authorizes the award of interest, in the court's discretion, in actions of an equitable nature. The provision for interest under the Court of Claims Act (§ 19, subd 1) is not inconsistent with CPLR 5001 (subd [a]). Under the circumstances, we are not inclined to disturb the commissioner's computation of interest because the nature of the wrong here has not posed the problem of speculative future loss that concerned the Legislature.
The intervenors offer no convincing rationale for shielding the State from awards of either damages for mental anguish or interest. Nor would the lack of an explicit provision in the Human Rights Law authorizing interest preclude such relief on the ground of sovereign immunity (cf. Matter of O'Berry, 179 N.Y. 285; City of New York v. State of New York, 95 Misc.2d 810, 818; but cf. Matter of Lehigh Val. R.R. Co. v Joseph, 281 App. Div. 57, 60, affd 305 N.Y. 853; Matter of Brophy v Prudential Ins. Co. of Amer., 246 App. Div. 871, affd 271 N.Y. 644).
The core issue in both the matters before us, however, is whether the commissioner could entertain a money claim against the State, and whether this court could enforce the resulting money award.
Both the Attorney-General's opinion referred to earlier and the Fourth Department in State Div. of Human Rights v. State of New York, Dept. of Mental Hygiene, Rome Developmental Center ( 85 A.D.2d 915) have responded in the affirmative. We do likewise, but with longer shrift commensurate with the issue.
Insofar as the commissioner's own jurisdiction is concerned, it is pertinent to refer to the Court of Appeals decision in Matter of Board of Higher Educ. v. Carter ( 14 N.Y.2d 138), which held that the Legislature did not exclude the State from the purview of the Human Rights Law. Since the definition of employers covered by the statute included the State and its agencies, there was no rational reason to excise from the commissioner's several ameliorative powers, his adjudicatory function, in order to limit the State's exposure to at most an exercise of the commissioner's investigatory function (14 N.Y.2d, at p 152). That decision, however, did not address the specific issue presented here, namely, whether the commissioner's adjudication could lawfully result in an order under section 297 (subd 4, par c) of the Executive Law requiring the State to hire, reinstate or upgrade employees with or without pay (cl [ii]) or awarding compensatory damages against the State (cl [iii]) as well as authorizing nonmonetary awards (cease and desist orders [cl (i)] and compliance reports [cl (v)]).
The Comptroller's argument is that the Legislature could not have granted the commissioner power to award such money damages against the State when jurisdiction over such money claims had been exclusively vested in the Court of Claims. The answer is that adjudication of money claims against the State has been entrusted by the Legislature to a variety of administrative agencies in full knowledge that the Court of Claims does not have a corner on the market.
As a technical matter, under the Constitution (art VI, § 7), the Supreme Court is vested with general original jurisdiction in law and equity, and claims against the State cannot be adjudicated in that forum for the simple reason that the doctrine of sovereign immunity prevents the exercise of personal jurisdiction over the State absent its consent. The Supreme Court does, however, have subject matter jurisdiction. (See Kagen v Kagen, 21 N.Y.2d 532, 538; People ex rel. Swift v. Luce, 204 N.Y. 478, 487; contra, Matter of Adams v. New York State Civ. Serv. Comm., 51 A.D.2d 668 .) This court is but a branch of the Supreme Court, sitting en banc as successor to General Term (see Waldo v. Schmidt, 200 N.Y. 199, 202-203; Matter of Association of Bar of City of N.Y., 222 App. Div. 580, 585). Though there may be an occasional (and apparently inadvertent) positioning of the adjective "exclusive" next to the noun "jurisdiction" when speaking of the Court of Claims (e.g., Kagen v. Kagen, supra, p 538; but see Quirk, Albany South Mall Contractors Relief Act — An Unconstitutional Infringement Upon Court of Claims Jurisdiction, 57 Cornell L Rev 51, 57-58), in fact the constitutional provision establishing the Court of Claims jurisdiction does not infringe the Supreme Court's general jurisdiction by use of any such adjective. Instead, it merely provides (NY Const, art VI, § 9) that the Court of Claims "shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Legislature has provided in the Court of Claims Act (§ 9) that the court may "hear and determine" claims for breach of contract, torts and appropriation of property; it has also purported to vest exclusive jurisdiction in condemnation cases in that court under the EDPL (§ 501) (but cf. Kagen v. Kagen, supra [Family Ct Act, § 411]).
The historical fact is that the Court of Claims has never been vested with jurisdiction over a well-defined corpus classifiable as "money claims", and a substantial number of such claims have been entrusted to the jurisdiction of other agencies of the State exercising adjudicatory functions. A significant part of that court's jurisdiction is the exercise of what used to be the Legislature's inherent power to reduce, through private bills, claims against the State to money awards, i.e., legislative fact finding and rule making of narrow application, whether denominated "adjudication", "auditing" or "assessing" (see People ex rel. Palmer v. Travis, 223 N.Y. 150, 157-158; People ex rel. Swift v. Luce, supra; Quayle v. State of New York, 192 N.Y. 47; Williamsburgh Sav. Bank v. State of New York, 243 N.Y. 231, 240-243), but the Legislature did not transfer all such power to that court. Money claims have been entrusted to the jurisdiction of the Comptroller (State Finance Law, § 8, subd 12-a [small claims for personal or property torts], subd 15 [fee refunds]; Retirement and Social Security Law, § 11 [administration of State retirement systems; see Matter of Croshier v. Levitt, 5 N.Y.2d 259; Matter of Zweck v. New York State Employees' Retirement System, 28 A.D.2d 1060]); the Workers' Compensation Board (Workers' Compensation Law, §§ 2, 142); the Industrial Commissioner (Labor Law, § 220, subd 8 [prevailing wages]; see Wright v. Wright Stucco, 50 N.Y.2d 837, revg 72 A.D.2d 959, 960 on dissent at App. Div.; see, also, Matter of Yerry v. Goodsell, 4 A.D.2d 395, 401-403, affd 4 N.Y.2d 999), and the Surrogate's Court ( Matter of Hoople, 179 N.Y. 308; Matter of O'Berry, 179 N.Y. 285, supra [tax refunds]). The State Division of Human Rights is simply one more such agency.
The Comptroller's alternative argument that this court is not possessed of jurisdiction to enforce the commissioner's order appears to be based on the faulty premise that the term money claims include claims already reduced through adjudication to legal rights enforceable against the State despite its immunity. Indeed, the express provision in section 298 Exec. of the Executive Law for the commissioner to "obtain an order of [the] court" for the enforcement of the commissioner's orders would appear to merely restate the availability of a special proceeding in the nature of mandamus under CPLR article 78, to which the doctrine of sovereign immunity has no relevance.
In analyzing claims against the State or its agencies for money, it must always be borne in mind that the sovereign has traditionally been subject to suit with or without consent throughout the whole range of law. The original meaning of the expression, "The king can do no wrong", meant precisely the opposite of what it is commonly understood to mean today. As Maitland explains it, the origin of the notion that the sovereign's consent to suit was required came about because the king could not practicably issue or enforce his writs against himself, so his aggrieved subject would proceed by way of a petition of right. With the advent of republican government, however, there was no one to whom such a petition could be addressed but the Legislature; upon this perceived need for legislative consent was erected the doctrine of sovereign immunity in American law. What is often forgotten, however, is the fact that the citizen aggrieved by his republican government lost but half his remedy in the transformation; the writs of mandamus, certiorari and habeas corpus still ran against government officers, who could also be sued for damages. By their very nature, these latter remedies have never required the sovereign's consent. (See Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv L Rev 1, 1-5, 16; see, also, Glassman v. Glassman, 309 N.Y. 436, 440; Chisholm v Georgia, 2 Dallas [2 US] 419, 437-441, 446; 3 Blackstone's Comm [original ed], pp 109-111, 254-257.)
It is thus not surprising to find that the consent of the State is likewise superfluous when injunctive relief (see Wright v Shanahan, 61 Hun 264, 270, supra; Montgomery v. State of New York, 69 Misc.2d 127, 130, affd 43 A.D.2d 552) or declaratory relief (see Town of Ohio v. People, 264 App. Div. 220, 222; Durant v. Whedon, 201 App. Div. 196, supra; Hunterfly Realty Corp. v. State of New York, 62 Misc.2d 567, 569-570; Burnham v Bennett, 141 Misc. 514) is sought. It is also worth noting that no consent is needed when the State is a mere stakeholder (see Glassman v. Glassman, 309 N.Y. 436, supra; cf. CPLR 5207 [garnishment]).
It has long been the law of this State that mandamus to compel an officer to perform a specific duty enjoined upon him by law is not the sort of claim against which the doctrine of sovereign immunity can properly be raised by the State. (See Wright v Shanahan, 61 Hun 264, 270; People ex rel. Vickerman v Contracting Bd., 46 Barb 254, 259.) This rule obtains in sister jurisdictions (see County of Los Angeles v. Riley, 20 Cal.2d 652, 662; State ex rel. Mitchell Furniture Co. v. Toole, 26 Mont. 22; State ex rel. Castillo Corp. v. New Mexico State Tax Comm., 79 N.M. 357; State, ex rel. Wilson v. Preston, 173 Ohio St. 203; cf. Pierce v. Green, 229 Iowa 22, 31-33; Love v. Filtsch, 33 Okla. 131; State Highway Comm. v. Green-Boots Constr. Co., 199 Okla. 477) including the Federal courts (see Marbury v. Madison, 1 Cranch [5 US] 137, 172; Board of Liquidation v. McComb, 92 U.S. 531, 541; United States v. Schurz, 102 U.S. 378, 404-405; Pennoyer v. McConnaughy, 140 U.S. 1, 9-10; Vishnevsky v. United States, 581 F.2d 1249, 1255-1257), and is an exception to the Eleventh Amendment's prohibition of actions against States by residents of other States (see Rolston v. Missouri Funds Comrs., 120 U.S. 390, 411; Great Northern Ins. Co. v. Read, 322 U.S. 47, 51).
Mandamus is available in this State to secure relief on a variety of theories that could be considered claims for money against the State (e.g., Board of Educ. v. Levitt, 42 A.D.2d 372 [school district interest costs]; Matter of Wells v. New York State Employees' Retirement System, 285 App. Div. 51 [pension]; People ex rel. Metropolitan Trust Co. of City of N.Y. v. Travis, 191 App. Div. 129 [tax refund]; People ex rel. Vickerman v. Contracting Bd., supra [bidding]; Ex Parte Jennings, 6 Cow 518, 526, on return sub nom. People ex rel. Jennings v. Seymour, 6 Cow 579 [canal claims]). The ancient writ was intended to maintain its vitality by the revisers of the civil procedure acts including the CPLR. (See Matter of Gimprich v. Board of Educ., 306 N.Y. 401, 406; Matter of Newbrand v. City of Yonkers, 285 N.Y. 164, 174-175; 8 Weinstein-Korn-Miller, N Y Civ Prac, par 7801.04; N Y Advisory Committee on Prac and Pro [2d prelim report], p 395; but see Matter of Brescia v. Mugridge, 52 Misc.2d 859, 862 , affd 29 A.D.2d 632; Matter of Barone v. Adams, 39 Misc.2d 227, 232, revd on other grounds 20 A.D.2d 790.)
Central to the distinction between a claim remediable in mandamus and one remediable in the Court of Claims is the notion that the liability of the State for the particular claim has already been established by law; to this extent, the term "claim" is imprecise. (See M.L. Improvement Corp. v. State of New York, 204 App. Div. 733, 735-736; People ex rel. Yates v. Canal Bd. of State of N.Y., 13 Barb 432, 440-441.) For this reason mandamus cannot lie against an officer, public body or corporation until the claimant's primary right and the respondent's duty can be said to have already been fixed as a matter of law. (See People ex rel. Garbutt v. Rochester State Line R.R. Co., 76 N.Y. 294; Dolan v. Mayor, Aldermen Commonalty of City of N.Y., 68 N.Y. 274; People ex rel. Brown v. Board of Apportionment Audit, 52 N.Y. 224; McCullough v. Mayor of Brooklyn, 23 Wend 458; Matter of Dunhill Mfg. Dist. Corp. v. State Park Comm. for City of N.Y., 42 A.D.2d 442, affd on opn at App. Div. 35 N.Y.2d 657; Matter of Buffalo Dump Truck Owners Assn. v. Condon, 232 App. Div. 273; Durant v. Whedon, 201 App. Div. 196; Matter of Morris Cumings Dredging Co., 116 App. Div. 257; People ex rel. Dunn v. Metz, 115 App. Div. 269, 274; Matter of Dental Soc. of State of N.Y. v Jacobs, 103 App. Div. 86; People ex rel. Gross v. Fitch, 14 App. Div. 630; People ex rel. Hoffman v. Rupp, 90 Hun 145, 148.)
As a legal remedy controlled by equitable principles (see Matter of Geller v. Veteran, 49 A.D.2d 574, app dsmd 38 N.Y.2d 1003), mandamus is essentially a judicial command to perform a ministerial act specifically required of a public or corporate officer or body by law (see Matter of Burdick v Hall, 232 App. Div. 387) in one of two senses: (1) a common-law, statutory or other rule of general application so enjoining the officer or board as invoked by a petitioner coming within its express terms (see People ex rel. Coffey v. Democratic Gen. Committee of Kings County, 164 N.Y. 335; Matter of Smith v Dillon, 267 App. Div. 39; People ex rel. Metropolitan Trust Co. v Travis, 191 App. Div. 129; Matter of Pfingst v. Levitt, 44 A.D.2d 157, mot for lv to app den 34 N.Y.2d 518; Henderson v. Sarle, 23 Misc.2d 334; Matter of Battipaglia v. Executive Committee of Democratic County Committee of County of Queens, 20 Misc.2d 226) ; or (2) a rule of limited application laid down in the form of a legislative, judicial, or administrative determination or a corporate charter or
The Legislature's power to pass "private bills", however, has long since passed into history — and partially into the Court of Claims (see N Y Const, art III, § 19; Williamsburgh Sav. Bank v. State of New York, 243 N.Y. 231, 240-241; People ex rel. Swift v. Luce, 204 N.Y. 478; Quayle v. State of New York, 192 N.Y. 47; Board of Supervisors of County of Cayuga v. State of New York, 153 N.Y. 279, 288; People ex rel. Sage v. Schuyler, 79 N.Y. 189, 201).
Compare Court of Claims Act (§ 20, subd 5) with CPLR 5207 and Court of Claims Act (§ 20, subd 3); see People ex rel. Palmer v. Travis, 223 N.Y. 150; Matter of Shepard, 225 App. Div. 782; Matter of Wolfies Rest. v. DeSapio, 2 Misc.2d 623, 624; Matter of Victor J. Georgetti, Inc. v. City of Long Beach, 58 Misc.2d 275; 5 Weinstein-Korn-Miller, N Y Civ Prac, par 5203.13; Siegel, New York Prac, § 558).
See Civil Service Law, §§ 75, 77: Education Law, § 3020-a; US Code, tit 5, § 702; Marbury v. Madison, 1 Cranch [5 US] 137; United States v. Schurz, 102 U.S. 378, 404-405; People ex rel. Brown v. Board of Apportionment Audit, 52 N.Y. 224; Matter of Hart v. Perkins, 258 N.Y. 61, 65; People ex rel. Linton v. Brooklyn Hgts. R.R. Co., 172 N.Y. 90; Matter of Hardenbrook v. Combs, 160 Misc. 546; Matter of Coogan, 27 Misc. 563, 567-568; 34 Am Jur, Mandamus, § 103; cf. Federal Trade Comm. v. Fairyfoot Prods. Co., 94 F.2d 844, 845-846.
The general rule is that private corporations (as distinguished from public corporations or other governmental entities) can be compelled to perform a ministerial duty or to act reasonably in the exercise of discretion only if the duty to act is specifically and plainly imposed by law rather than by contract (see People v. New York, Lake Erie Western R.R. Co., 104 N.Y. 58, 67). The distinction has been as difficult to preserve over the years as it has been to perceive in any given case (e.g., People ex rel. Dilcher v. German United Evangelical St. Stephen's Church of Buffalo, 53 N.Y. 103).
A straightforward application of mandamus is coercing management compliance with corporators' rights in corporate governance, such as meeting and voting rights (see Matter of Auer v. Dressel, 306 N.Y. 427; People ex rel. Miller v. Cummings, 72 N.Y. 433, 437; Matter of Allied Fruit Extract Co., 243 App. Div. 52; Matter of Young v. Jebbett, 213 App. Div. 774; People ex rel. Griffin v. Steele, 2 Barb 397, 416-419), and the right to inspect corporate books and records (see Matter of Durr v Paragon Trading Corp., 270 N.Y. 464; Matter of Tuttle v. Iron Nat. Bank of Plattsburgh, 170 N.Y. 9; Matter of Steinway, 159 N.Y. 250; Matter of Hausner v. Hopewell Prods., 10 A.D.2d 876; Matter of Workmen's Benefit Fund of U.S.A. [ Michel], 265 App. Div. 176; Matter of Newman v. Smith, 263 App. Div. 85, affd 289 N.Y. 545; Matter of Lenc v. Zicha, 223 App. Div. 158, affd 250 N.Y. 541; People ex rel. Keeseville, Ausable Chasm Lake Champlain R.R. Co. v. Powers, 145 App. Div. 693; Pino v. United Democratic Regular Organization of 16th Assembly Dist., Kings County, 195 N.Y.S.2d 860).
Mandamus also lies to enforce membership rights arising from corporate rather than contractual association status (see Matter of Phalen v. Theatrical Protective Union No. 1., 22 N.Y.2d 34, cert den 393 U.S. 1000; Polin v. Kaplan, 257 N.Y. 277; People ex rel. Solomon v. Brotherhood of Painters, Decorators Paperhangers of Amer., 218 N.Y. 115; People ex rel. Schults v. Love, 199 App. Div. 815; Matter of Weidenfeld v. Keppler, 84 App. Div. 235, affd on opn at App. Div. 176 N.Y. 562; but see, Hutchinson v. Lawrence, 67 How Prac 38, 53-55 ). It is also an appropriate remedy for the enforcement of statutory rights of unincorporated membership organizations (see Matter of Battipaglia v. Executive Committee of Democratic County Committee of County of Queens, 20 Misc.2d 226, 227-229; Henderson v. Sarle, 23 Misc.2d 334). Mandamus is appropriate even if a corporate membership right is not strictly grounded in a specific provision of a statute or the corporate charter (see Wilcox v. Supreme Council of Royal Arcanum, 210 N.Y. 370, 376-377 [due process]; People ex rel. Johnson v. New York Produce Exch., 149 N.Y. 401 [corporate by-law]; Matter of Haebler v. New York Produce Exch., 149 N.Y. 414 [corporate by-law]; People ex rel. Deverell v. Musical Mut. Protective Union, 118 N.Y. 101 [corporate by-law]; People ex rel. Bartlett v. Medical Soc. of Erie County, 32 N.Y. 187 [professional association rules]; Matter of Gerseta Corp. v. Silk Assn. of Amer., 220 App. Div. 293, 295-296 [trade association rule, custom or by-law]; Matter of Barry v The Players, 147 App. Div. 704, affd 204 N.Y. 669 [incorporated club's constitution]; People ex rel. Doyle v. New York Benevolent Soc. of Operative Masons, 3 Hun 361, 365 [due process]; People ex rel. Gray v. Medical Soc. of County of Erie, 24 Barb 570, 574-576 [corporate by-law]; People ex rel. Schmitt v. Saint Franciscus Benevolent Soc., 24 How Prac 216, 221-222 [due process]).
The well-established though difficult distinction between legal and contractual duties enforceable in mandamus has eroded in recent years in cases involving disciplined students and teachers in private educational institutions. Since student and teacher relationships with such private organizations are basically contractual (tuition in exchange for instruction or wages in exchange for services), mandamus would not lie (see People ex rel. Kelsey v. New York Post-Graduate Med. School Hosp., 29 App. Div. 244, 250-252; People ex rel. Barnet v. College of Physicians Surgeons, 7 How Prac 290). Yet just as the courts took upon themselves the powers of visitation of business and membership corporations (see Wilcox v. Supreme Council of Royal Arcanum, supra), such powers were vested in the Regents of the University of the State of New York over private as well as public educational institutions, and the duties imposed upon those institutions in the exercise of those powers by the Regents may be enforceable in mandamus (see Education Law, § 207, 215 Educ., 224-a Educ., 226 Educ., 305 Educ.; 8 NYCRR 19.1, 51.3, 52.2, 52.6, 53.3; Matter of Patti Ann H. v. New York Med. Coll., 88 A.D.2d 296; People ex rel. O'Sullivan v. New York Law School, 68 Hun 118; cf. Goldstein v New York Univ., 76 App. Div. 80, 82-83; see, also, People ex rel. Jones v. New York Homeopathic Med. Coll. Hosp., 20 N.Y.S 379). Recent decisions have not fully addressed the propriety of proceeding in mandamus under CPLR article 78 instead of in an action at law or in equity when rights of an apparently contractual nature have been pursued by students (see Mewshaw v Brooklyn Law School, 53 A.D.2d 604; Abrams v. New School for Social Research, 50 A.D.2d 778, affd 40 N.Y.2d 961; Matter of Carr v. St. John's Univ., 17 A.D.2d 632, affd 12 N.Y.2d 802; People ex rel. Cecil v. Bellevue Hosp. Med. Coll. of City of N.Y., 60 Hun 107, 109, affd 128 N.Y. 621; Balogun v. Cornell Univ., 70 Misc.2d 474; Mitchell v. Long Is. Univ., 62 Misc.2d 733; Matter of Edde v. Columbia Univ. in City of N.Y., 8 Misc.2d 795, affd 6 A.D.2d 780, cert den 359 U.S. 956; Anthony v. Syracuse Univ., 130 Misc. 249, 253-255, revd on other grounds 224 App. Div. 487) or by teachers ( Matter of Yaakob v. Schwartz Coll. of Pharmacy Health Sciences of Long Is. Univ., 77 A.D.2d 884, affd for reasons stated in mem at App. Div. 53 N.Y.2d 959; Matter of Madon v. Long Is. Univ., 70 A.D.2d 913). Nevertheless, there is evidence of a modern trend in which specific performance in the nature of mandamus controlling ministerial or arbitrary and capricious decisions of private educational institutions (see CPLR 7803, subd 3; 1 Clark, New York Law of Damages, § 363; Fry, Specific Performance of Contracts [5th ed], §§ 11, 12; Matter of Public Serv. Comm. v Interborough Rapid Tr. Co., 172 App. Div. 324, 330, affd 219 N.Y. 355), in apparent substitution for damages or specific performance under ordinary contract principles, may be afforded to both students (see Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 658-660; Morales v. New York Univ., 83 A.D.2d 811; Shields v School of Law of Hofstra Univ., 77 A.D.2d 867; People ex rel. Goldenkoff v. Albany Law School, 198 App. Div. 460; Matter of Kwiatkowski v. Ithaca Coll., 82 Misc.2d 43; Matter of Ryan v Hofstra Univ., 67 Misc.2d 651; but see Matter of Bonwitt v Albany Med. Center School of Nursing, 77 Misc.2d 269 ) and teachers (see Matter of Gray v. Canisius Coll. of Buffalo, 76 A.D.2d 30, 35-36; Matter of Barone v. Adams, 39 Misc.2d 227, 231-232, revd on other grounds 20 A.D.2d 790; but see Cuppy v Ward, 227 N.Y. 603 ; Bleendes v. Fellerman, 264 App. Div. 223; Miller v. Warner, 42 App. Div. 208 [no specific performance of employment contracts]). Indeed, the substantive transformation of private relationships lightly regulated by the Regents and otherwise governed only by freely drawn contract provisions of narrow scope into quasi-public relationships subject in all aspects to judicial oversight under the arbitrary and capricious test and other review standards of CPLR article 78 — a procedural article — would appear to be a latter day illustration of what Maitland had thought was an historical curiosity: "'So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure.'" (Maitland, The Forms of Action at Common Law, lecture i, p 1.)
contract with a public dimension fixing petitioner's right to such performance.
By definition government contracts have a public dimension because of the public status of the government party, and because of the contracts' being an exercise of sovereign power albeit narrowly applied in the form of a set of rules governing the relations of the parties to the contracts. In a sense, the government can be said to have bound itself (and its officers) by contract in the same way it binds itself by statute or judicial decision; therefore, once a party has come within the terms of a contract's provisions for government action upon that party's performance of his contract obligations, mandamus ought to lie to compel such government action. This conclusion will not bear analysis. Though the State acts not as a sovereign but as a corporate entity when it enters into a contract (see City of Indianapolis v. Indianapolis Water Co., 185 Ind. 277), claims against it arising out of such contract cannot be enforced except in the Court of Claims because of the doctrine of sovereign immunity (see Bridge's Sons v. State of New York, 188 App. Div. 500, 501, affd 231 N.Y. 532). Therefore, it is not technically accurate to say that mandamus lies to enforce the contract rights. Instead, the availability of mandamus to enforce what appear to be contract rights is based in this State upon one of two theories: A vesting of legal — hence not merely contractual — right by some official act of accepting the petitioner's performance of his obligations under the contract, or a vesting of right not in the nature of contract but in the nature of status or statutory grant.
With respect to the first theory, the private party contracting with the State or local government must study the pertinent statutes and local ordinances, by-laws and regulations to ascertain the amenability of the government party to an action at law and the existence of any administrative or quasi-judicial auditing machinery that could resolve contract claims within the government entity — subject to review in a proceeding in mandamus or certiorari (now provided in CPLR article 78). (See Matter of Wilaka Constr. Co. v. McAneny, 265 N.Y. 43; People ex rel. Desiderio v. Conolly, 238 N.Y. 326; O'Neil v. State of New York, 223 N.Y. 40; New York Catholic Protectory v. Rockland County, 212 N.Y. 311; Quayle v. State of New York, 192 N.Y. 47; People ex rel. Dady v. Coler, 171 N.Y. 373; People ex rel. Thurston v. Board of Town Auditors of Town of Elmira, 82 N.Y. 80; People ex rel. Ryan v. Green, 58 N.Y. 295; Huff v. Knapp, 5 N.Y. 65; Matter of Rapid Tr. Subway Constr. Co. v. Craig, 199 App. Div. 45; Commonwealth Water Co. v. Village of Castleton, 192 App. Div. 697; Bragg v. Town of Victor, 84 App. Div. 83; People ex rel. Rice v. Board of Auditors of Town of Hannibal, 65 Hun 414; Pagel, Horton Co. v Joseph, 61 N.Y.S.2d 311.) An article 78 proceeding in the nature of mandamus can be used to compel payment of an audited sum, directing performance of a ministerial act such as signing a warrant; furthermore, in some circumstances, it can compel acts preliminary to payment, such as the audit itself, which would then be subject to further article 78 proceedings to review the result (see People ex rel. McCabe v. Matthies, 179 N.Y. 242), although such review would use an arbitrariness test rather than a contract or equity analysis (cf. Matter of T.P.K. Constr. Corp. v. O'Shea, 69 A.D.2d 316, affd 50 N.Y.2d 835). These special circumstances include completed performance of all or a portion of the private contractor's obligations, a valid express contract, and official acceptance of such performance by the appropriate agent of the government entity (see People ex rel. Graves v. Sohmer, 207 N.Y. 450; Quayle v. State of New York, supra; Matter of Freel, 148 N.Y. 165; Matter of Fehlhaber Corp. v O'Hara, 53 A.D.2d 746; Matter of Buffalo Dump Truck Owners Assn. v. Condon, 232 App. Div. 273; Durant v. Whedon, 201 App. Div. 196, 200-202; Matter of Morris Cumings Dredging Co., 116 App. Div. 257; People ex rel. Dunn v. Metz, 115 App. Div. 269; People ex rel. Gross v. Fitch, 14 App. Div. 630) or such sufficient inaction as to be deemed acceptance (compare Matter of Bay Ridge Diagnostic Analytical Lab. v. Smith, 71 A.D.2d 889, and People ex rel. Beck v. Coler, 34 App. Div. 167, with Marsh v. Town of Little Val., 64 N.Y. 112, and Pagel, Horton Co. v. Joseph, supra). Furthermore, just as courts other than the Court of Claims have jurisdiction of CPLR article 78 proceedings to review administrative adjudications of contract claims, these courts have jurisdiction of CPLR article 75 proceedings to review and enforce contractual arbitration awards (see CPLR 7501; Farino v State of New York, 55 A.D.2d 843).
With respect to the second theory, New York is heir to ancient common-law principles that analyze public employment cases, including salary claims, as matters of property rather than contract law: An officer holds title to his office, and a tenured employee holds title to his position; therefore removal or dismissal in violation of law is analyzed in terms of ouster rather than defeasance of title or breach of contract, thus permitting recourse to proceedings under what is now CPLR article 78 to obtain reinstatement to the office or position and all its emoluments (see Nichols v. MacLean, 101 N.Y. 526, 533-534; 3 Kent, Commentaries, p 454; compare Steinson v. Board of Educ., 165 N.Y. 431, and O'Hara v. City of New York, 46 App. Div. 518, affd on opn at App. Div. 167 N.Y. 567, with State ex rel. Shanks v. Common Council of City of Washington, 212 Ind. 38). The usual rules of ordinary employment contract law apply to nontenured personnel such as probationary employees (see Matter of Sehulster v Carney, 196 Misc. 356, affd 276 App. Div. 592; Matter of Rindone v Marsh, 183 Misc. 10). Thus in the absence of some express provision of law imposing a nondiscretionary duty on an officer or board in relation to an employment contract (see, e.g., Yris v. Comsewogue Union Free School Dist. No. 3, Port Jefferson Sta., 63 A.D.2d 648, affd 55 N.Y.2d 840 [statutory schedule of teacher salaries]), public servants seeking either reinstatement plus emoluments made incident thereto (e.g., salaries) by law or contract, or merely those emoluments assimilated thereto by law (but not merely by contract) after reinstatement, may use mandamus if they can be classified as tenured employees or officers under this theory, which is now essentially codified in sections 75 Civ. Serv. and 77 Civ. Serv. of the Civil Service Law and section 3020-a Educ. of the Education Law. (See Matter of Mullane v McKenzie, 269 N.Y. 369; Matter of Deth v. Castimore, 245 App. Div. 156; Matter of Sehulster v. Carney, supra; Matter of Rindone v. Marsh, supra; People ex rel. Blair v. Grout, 44 Misc. 526.)
To accept the Comptroller's characterization of the commissioner's order as a mere money claim on which the State is not yet liable would undermine the very concept of administrative adjudication — including adjudications made by the Comptroller. Nor would it make any sense to require a victorious complainant to submit the commissioner's order to the Court of Claims rather than this court, which has "exclusive" jurisdiction under section 298 Exec. of the Executive Law of proceedings to review such administrative orders. Finally, the availability of the Court of Claims for enforcement of a commissioner's order would not constitute an adequate alternative legal remedy sufficient to deny mandamus at common law, even without considering the express direction to this court in section 298 for its use.
Mandamus does not issue if there is an adequate legal (as distinguished from equitable) remedy such as an action at law ( People ex rel. Frost v. New York Cent. Hudson Riv. R.R. Co., 168 N.Y. 187; People ex rel. Moulton v. Mayor, etc. of NY, 10 Wend 395). An injunction will not issue if full relief is available in mandamus (see Kane v. Walsh, 295 N.Y. 198; Matter of Reynolds, 202 N.Y. 430; Southern Leasing Co. v. Ludwig, 217 N.Y. 100). Like an affirmative injunction, mandamus compels specific performance (see Board of Liquidation v. McComb, 92 U.S. 531, 541; Kendall v United States, 12 Pet [37 US] 524, 614; People v. Supervisors of County of Columbia, 10 Wend 363, 366; Matter of Trustees of Vil. of Williamsburgh, 1 Barb 34, 35; 38 CJ, Mandamus, § 32, p 561). The uncertainty inherent in securing full relief in actions at law permits the aggrieved party to make an election of remedy — mandamus or action (see Toscano v. McGoldrick, 300 N.Y. 156; McGraw v. Gresser, 226 N.Y. 57; People ex rel. Fiedler v. Mead, 24 N.Y. 114, 121-123; Huff v. Knapp, 5 N.Y. 65, 67-68; Matter of Adams v. New York State Civ. Serv. Comm., 51 A.D.2d 668, 669; Forino v. City of Troy, 42 A.D.2d 647; see, also, Thoma v. City of New York, 263 N.Y. 402; Sayre v. State of New York, 128 N.Y. 622; People ex rel. Ryan v. Green, 58 N.Y. 295, supra; Matter of Trustees of Vil. of Williamsburgh, supra, p 35; McLaughlin v New York City Employees Retirement System, 90 Misc.2d 509). Only mandamus, however, is available if the board or officers to whom it is directed serve the public directly rather than as agents for a municipal corporation (see Toscano v. McGoldrick, 300 N.Y. 156, 161-162, supra). Only mandamus can establish a right to possession of an office or position, the title of which is held by the petitioner; unless such right be established, by mandamus, other adjudication or stipulation, recovery of back pay is barred (see Austin v. Board of Higher Educ., 5 N.Y.2d 430; Hagan v. City of Brooklyn, 126 N.Y. 643; Smith v. Helbraun, 24 A.D.2d 518; Matter of Bush v. Beckmann, 283 App. Div. 1070; Manko v. City of Buffalo, 271 App. Div. 286, affd 296 N.Y. 905; Hilton v. Cram, 112 App. Div. 35, affd 190 N.Y. 535; Burgos v. State of New York, 40 Misc.2d 971). There may be a question whether an election between mandamus and an action at law for damages is available if the term of office or position has expired (cf. Matter of Burke v Bowen, 40 N.Y.2d 264; but see Matter of Pfingst v. Levitt, 44 A.D.2d 157 , mot for lv to app den 34 N.Y.2d 518; Matter of White v Harrell, 239 App. Div. 604; People ex rel. Collins v. McAneny, 144 N.Y.S 121).
Of course, under this analysis the Comptroller's argument that he should have been joined as a party to the administrative proceedings before the commissioner is clearly incorrect. The claims involved have been liquidated and the State's liability fixed by the very administrative machinery set in place by the Legislature for such purpose. The Comptroller's role as auditor under the State Constitution (art V, § 1) and State Finance Law (§ 109, subd 4) would therefore be purely ministerial. (See People ex rel. Desiderio v. Conolly, 238 N.Y. 326, 332-334; People ex rel. Sage v. Schuyler, 79 N.Y. 189, 201; People ex rel. Heinrich v. Travis, 175 App. Div. 721, 726; but cf. Matter of Civil Serv. Employees Assn. v. Bartlett, 51 A.D.2d 100 .)
Yet the Comptroller correctly points out that he cannot be compelled to pay the sum as directed by the commissioner's order, as enforced by this court, without an appropriation of money from the Legislature on which to draw.
Mandamus is available to compel the making of appropriations by bodies inferior to the State Legislature, but it cannot coerce appropriations from the latter (NY Const, art VII, § 7; People ex rel. O'Loughlin v. Prendergast, 219 N.Y. 377; People ex rel. Dannat v. Comptroller of City of N.Y., 77 N.Y. 45; Matter of Victor J. Georgetti, Inc. v. City of Long Beach, 58 Misc.2d 275). Were there in fact no appropriations to cover all or part of the commissioner's orders, the commissioner (or complainant) could presumably submit the orders judicially reviewed by this court to the Court of Claims for entry in ministerial fashion of a judgment against the State that would be satisfied from the perennial appropriations for such judgments (see O'Neil v. State of New York, 223 N.Y. 40, 44; Ball v. State of New York, 52 A.D.2d 47). Though the Court of Claims lacks the enforcement powers of this court (see Matter of Silverman v. Comptroller of State of N Y, 40 A.D.2d 225; Safeco Ins. Co. of Amer. v. State of New York, 89 Misc.2d 864, 866; contra, Wilson v. State of New York, 73 Misc.2d 931 ; see Montgomery v. State of New York, 69 Misc.2d 127, 130, affd 43 A.D.2d 552, supra), enforcement of the commissioner's order as thus reduced to a Court of Claims judgment covered by an appropriation could be had in the Supreme Court (see People ex rel. Palmer v. Travis, 223 N.Y. 150, supra).
All of this could be avoided if there were an appropriation for orders of the commissioner as there is for the Court of Claims; however, the arguments of the commissioner indicate that until recently the Comptroller's practice was to draw on personal service appropriations to cover backpay orders. The Comptroller does in fact appear to have a certain degree of discretion under the State Finance Law (§ 52) in defining the various sorts of expenses to be met by appropriations; however, the award of damages representing lost earnings for nonappointment in the Greebel matter would not appear to fall within the personal service category because, as the Civil Service Department pointed out, the practice is for the department to certify the payroll before the Comptroller will act on it. Since the Civil Service Department never in fact exercised its constitutional prerogative ( City of Schenectady v. State Div. of Human Rights, 37 N.Y.2d 421, supra), in certifying Greebel, the award can only be upheld as compensatory damages under the statute (Executive Law, § 297, subd 4, par c, cl [iii]) rather than as back pay upon hiring, reinstatement or upgrading (Executive Law, § 297, subd 4, par c, cl [ii]) (see n 2, supra). Furthermore, the Comptroller has already voiced his opinion as auditor that interest and damages for mental anguish would not be covered by the personal service appropriations.
A review of the 1982 State budget, however, discloses that the Legislature has made enough of an appropriation ($11,000) to cover damages adjudicated in the small claims audit provided by the State Finance Law (§ 8, subd 12-a) (L 1982, ch 50, Sen Print 7670, p 315 [Budget, State Purposes, Reg Misc, All State Depts and Agencies, Special Departmental Charges]). Subdivision 12-a authorizes the Comptroller to entertain, outside of the Court of Claims Act, demands for damages not exceeding $5,000 for "injuries to personal property, real property, or for personal injuries caused by the tort of an officer or employee". Among the personal injuries defined as such by the General Construction Law (§ 37-a) are libel and slander, and that provision has also been construed to include violations of the Civil Rights Law (see Riddle v. MacFadden, 201 N.Y. 215 [invasion of privacy]). It is significant to note that the civil rights violation committed by the State in the Greebel matter — religious discrimination — is similar to libel and slander not only in the mental suffering of the victim but also in the economic consequences (e.g., lost income or business) (see Broderick v. News Syndicate Co., 243 N.Y. 546; Sanderson v. Caldwell, 45 N.Y. 398; Tower v. Crosby, 214 App. Div. 392; Edwards X-Ray Co. v. Ritter Dental Mfg. Co., 124 Misc. 898). We suggest, therefore, that the entire award of damages in lieu of back wages, plus interest and compensation for mental anguish, are payable from the 1982 appropriation.
We note that the requirement in subdivision 12-a of section 8 State Fin. of the State Finance Law respecting the Parks and Recreation Commission's submission to the Comptroller of its request for payment of the sum directed to be paid by the commissioner's order could be deemed met by the proceedings before the commissioner, and the second requirement of approval by the Attorney-General could also be deemed met by the position expressed in his opinion issued in the Geraci matter.
Accordingly, the application for enforcement in the Geraci matter is denied for lack of a basis in law supporting the award, and that part of the motion by the Comptroller and the Civil Service Department to vacate this court's enforcement order in the Greebel matter is denied because there is no jurisdictional infirmity or practical difficulty in obeying that order.
DAMIANI, J.P., TITONE, LAZER and GIBBONS, JJ., concur.
Proceeding by the State Division of Human Rights pursuant to section 298 Exec. of the Executive Law, inter alia, to enforce its determination dated June 28, 1978, on behalf of claimant Santo Geraci, and motion by the New York State Department of Audit and Control and the New York State Department of Civil Service to intervene and vacate an order of this court dated December 1, 1980 granting enforcement of an order of the Commissioner of Human Rights dated April 25, 1980.
Application denied, without costs or disbursements, and motion granted only to the extent that intervention is sought and otherwise denied.